A good law in search of a good agency

The Magnuson-Stevens Fishery Conservation and Management Act is the overarching law that manages America’s marine fisheries. It was first passed in 1976 and was reauthorized in 1996 and again in 2006.

Throughout its 30-plus-year history MSA has been dogged by a persistent problem that affected both recreational and commercial fisheries – its inability to end overfishing. Federal fisheries were allowed to limp along from one year to the next, under management plans that had only very small chances of actually recovering overfished populations. While the fishery management plans generated under earlier versions of MSA were short on delivering results, they did allow managers to avoid making any difficult decision that might raise the ire of users of the resource. It was an all-too-common occurrence for fisheries managers to knowingly adopt management regimes that allowed gross overfishing to continue and base all hopes for the future health of the resource on a confluence of factors that almost never materialized.

For anyone seeking to create sustainable, healthy marine resources, the shortcomings of MSA were frustrating.

As a result, when MSA was reauthorized in 2006 it put in place the strictest legal mandates ever seen in fisheries management in an effort to finally put an end to the intractable problem of overfishing. Among the unprecedented requirements was the cessation of all overfishing in U.S. waters by 2011 and the rebuilding of overfished species within a time certain. For the first time ever, ending overfishing had a firm deadline. In the quest for the robust, sustainable resources sought by recreational anglers, the new provisions of MSA seemed like the recipe, at last, for proper conservation of our marine resources.

Instead, those provisions cast a harsh light on the real root of the problem with federal fisheries: the National Marine Fisheries Service (NMFS), the very agency charged with managing them in the first place.

The case of red snapper in the South Atlantic is a good example. South Atlantic red snapper has been ignored by NMFS for the past 50 years or so. Federal managers had no idea what condition the stock was in until they conducted the first full, modern stock assessment and released the results almost on the same day that the new MSA was signed into law in 2007. At nearly the same instant the strictest legal mandates ever put into federal fisheries management were enacted, the agency in charge of managing this nation’s marine resources “discovered” that a popular species was at 3 percent of what is considered a healthy biomass. Under the new law, management of this species evolved in the blink of an eye from blissful ignorance to harsh proposals to close vast swaths of the South Atlantic to all bottom fishing – for any fish.

The new MSA mandates may be the recipe for good conservation, but in combination with an agency that has utterly failed to properly manage our marine resources they are going to cause some real short-term hardship. Users of the resource are rightfully irate at the prospect of closures for popular species, but have misdirected their ire at the new provisions of MSA, rather than at the agency which has failed to competently discharge its duties under the law. The recent edition of MSA is the most conservation-oriented fisheries management law we have ever had in this country, and its mandates are clearly needed to force managers to impose needed measures to rebuild our fisheries. But nothing in MSA requires the agency to shut down fisheries such as black sea bass or Gulf amberjack in order to address transient problems. Those recent examples of managing by closure are the result of failing to properly manage those fisheries in the first place, and that fault lies firmly with NMFS.

The new MSA assumed that the agency in charge of the nation’s fisheries had been regularly collecting the data and taking the necessary steps to properly manage our fisheries, if not to perfect health then at least to some semblance of sustainability. With the recent flurry of bad news in some fisheries, it seems clear that the agency has not made proper management either a policy priority or a budget priority, and now recreational anglers are paying the price.

Managing by closure is not what Congress had in mind when it reauthorized MSA in 2006, but that is little comfort to the hundreds of thousands of anglers that stand to be impacted by closures in the South Atlantic and elsewhere.

The reality that we are now facing makes it clear that NMFS simply was not ready for a law that mandates our marine resources be managed to sustainability, and that is a stunning revelation. The challenge now is to upgrade both NMFS’ capabilities and its attitudes, so that it is capable of upholding the law while avoiding massive, abrupt and unnecessary closures of important fisheries. NMFS must be compelled to meet its statutory responsibilities by doing all the things it has neglected to do in the past, which have paved the way to the present morass. It must improve data collection on recreational anglers and develop fishery independent data to model accurate stock assessments. It must prove to the public that its science truly is the best available science. It must win back the public trust.

MSA was reauthorized with sweeping reforms expressly designed to end overfishing and rebuild fisheries. It would be tragic to jeopardize all the positive elements contained in the law today because of heavy-handed federal management measures that are the result of serious and continuing managerial shortcomings. Amid all the controversy and debate surrounding some federal fisheries, it is important to remember that with the 2006 reauthorization of MSA, Congress intended to end overfishing, not end fishing.